Long v. Jim Letts Oldsmobile, Inc.

• Decision Date: 11 June 1975
• Docket Number: No. 50355,No. 1,50355,1
• Parties: Nick LONG v. JIM LETTS OLDSMOBILE, INC., et al
• Court: Georgia Court of Appeals

Page 602

217 S.E.2d 602

135 Ga.App. 293

Nick LONG v. JIM LETTS OLDSMOBILE, INC., et al.

No. 50355.

Court of Appeals of Georgia, Division No. 1.

June 11, 1975.

Rehearing Denied July 2, 1975.

Long & Pierce, Nick Long, Jr., Atlanta, for appellant.

King & Spalding, Charles M. Shaffer, Jr., James A. Eichelberger, William M. Rich, Frank E. Jenkins, III, R. Byron Attridge, Atlanta, for appellees.

MARSHALL, Judge.

The sole issue presented by this appeal is whether Long may recover in tort against the manufacturer and seller of a new automobile for damages to the vehicle itself arising from defects in the engine. Long alleges that the engine was 'running hot and blowing out the liquid in the radiator,' and that he took the car back to the seller on several occasions and that neither the seller nor the manufacturer repaired or corrected the problem, and that this condition persisted throughout his ownership. After 22 months and 27,000 miles of use, Long states that the engine was completely destroyed and he sold the car for $1,458.00 when its 'book value' was $3,700.00. His alleged damages were expenses for repairs ($635.45) not covered by the new car warranty, time lost from work, loss of use of the car while being repaired, diminution in value, inconvenience, and punitive damages ($43,934.50) for 'wilful misconduct' and 'indifference to the consequences suffered by' Long. He appeals from summary judgments granted to both defendants. Held:

1. 'To entitle the defendant to a summary judgment the undisputed facts as disclosed by the pleadings and evidence must negate at least one essential element entitling plaintiff to recovery and under every theory fairly drawn from the pleadings and evidence (Werbin & Tenenbaum v. Heard, 121 Ga.App. 147(2, 3), 173 S.E.2d 114; Scales v. Peevy, 103 Ga.App. 42, 46, 118 S.E.2d 193; Calhoun v. Eaves, 114 Ga.App. 756, 759, 152 S.E.2d 805; Saunders v. Vickers, 116 Ga.App. 733, 734(2), 158 S.E.2d 324; Central of Ga. Railway Co. v. Woolfolk Chemical Works, 122 Ga.App. 789, 178 S.E.2d 710; Columbia Drug Co. v. Cook, 127 Ga.App. 490, 194 S.E.2d 286; Turner v. Noe, 127 Ga.App. 870, 195 S.E.2d 463; Morrow v. Thomason, 127 Ga.App. 309, 193 S.E.2d 256).' Henderson v. Atlanta Transit System 133 Ga.App. 354, 356, 210 S.E.2d 845, 846.

2. The only theory fairly drawn from Long's pleadings and evidence is that of negligence, to wit: that General Motors negligently manufactured and that Jim Letts negligently repaired the car. Thus, we are not concerned with any breach of contract, or breach of the express new car warranty or the waiver of implied warranties or with any kind of strict liability under Code Ann. § 105-106.

It is well settled that misfeasance in the performance of a contractual duty may give rise to a tort action. See, e.g., E. & M. Constr. Co., Inc. v. Bob, 115 Ga.App. 127, 153 S.E.2d 641; Floyd v. Morgan, 106 Ga.App. 332, 127 S.E.2d 31; Moody v. Martin Motor Co., 76 Ga.App. 456, 46 S.E.2d 197. But in such cases the injury to the plaintiff has been 'an independent injury over and above the mere disappointment of plaintiff's hope to receive his contracted for benefit.' Orkin Exterminating Co. v. Stevens, 130 Ga.App. 363, 366, 203 S.E.2d 587, 591. '(I)n order to maintain an action ex delicto because of a breach of duty growing out of a contractual relation the breach must be shown to have been a breach of a duty imposed by law and not merely the breach of a duty imposed by the contract itself.' Mauldin v. Sheffer, 113 Ga.App. 874, 879-880, 150 S.E.2d 150, 154. 'The duty, for a breach of which an action ex delicto lies, must be a duty imposed by law as to some relationship, general or special, as applied to that class of cases where the alleged duty arises out of a contract. For instance, if one promises to pay another a given sum of money by a named day, the contract creates a duty to pay; but a breach of that duty is not a tort.' Howard v. Central R. Co., 9 Ga.App. 617, 619, 71 S.E. 1017. See also, Kenimer v. Ward Wight Realty Co.,109 Ga.App. 130, 135 S.E.2d 501; Orkin Termite Co. v. Duffell, 97 Ga.App. 215, 102 S.E.2d 629; Atlanta Gas Light Co. v. Newman, 88 Ga.App. 252(1),76 S.E.2d 536; Manley v. Exposition Cotton Mills, 47 Ga.App. 496(1),170 S.E. 711; Fain v. Wilkerson, 22 Ga.App. 193, 95 S.E. 752.

In the present case, the duty of the manufacturer was to produce a car that would not overheat. The duty of the seller-repairman was to fix the car so that it would not overheat. These duties arose, in both cases, solely from the contract between the plaintiff, Long, and these two defendants. The breach of that duty (which is the only duty alleged to have been breached) amounts only to a breach of the contractual duties of the defendants. There may have been other duties owed by the defendants to Long, which arose independent of the contracts, such as the duty imposed on suppliers and repairmen of chattels to use reasonable care not to place in the hands of the consumer a 'product which may reasonably be expected to be capable of inflicting substantial harm if it is defective.' Prosser, Law of Torts, 4th Ed. (1971), p. 643. MacPherson v. Buick Motor Co., 217 N.Y....